Date of filing :7.2.2018

Judgment : Dt.31.10.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Arindam Chattopadhaya alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Kartick Chandra Paul, (2) Sri Tapan Kumar Guchhait, (3) Sri Sabia Hari and (4) Sk. Sikandar.

            Case of the Complainant, in brief, is that being desirous to avail housing construction service, the Complainant entered into an Agreement for Sale on 14.4.2015 with the OPs in respect of a flat on the 2^nd floor back side of a building to be constructed at Premises No.363, Purbachal Main Road, P.S.-Garfa, Kolkata – 700 078 at a consideration of Rs.8,00,000/- out of which the Complainant paid Rs.2,40,000/- to the OPs and the flat in question was to have been delivered within 18 months from the date of execution of Agreement for Sale and balance consideration amount was to have been paid by the Complainant within 12 months from the said date but the OP Nos.3 & 4 did not complete the construction and requested the Complainant to take handover by November, 2016 but the said flat had not been handed over to the Complainant and finding no other alternative the Complainant sent demand notice dt.7.11.2016 and thereafter the Complainant was requested by the OPs to allow some time to complete the construction, but that too had not been materialized. The Complainant has further stated that the OPs completed construction in the meantime and started looking for intending purchaser but did not hand over said flat to the Complainant. Moreover, the OPs tried to sell the flat in question to a third party.

            The Complainant has further stated that the OP Nos.3 & 4 are Developers and the OP Nos.1 & 2 are the landowners and two development agreements were executed by the landowner No.1 & 2 and Developers for developing the said plot of land by constructing multistoried building and by virtue of these two Development agreements OP Nos.3 & 4 Developers were empowered to enter into agreement for sale with the intending purchasers. It is further stated by the Complainant that as per said Development Agreements the OP No.1 is entitled to get 40% of constructed area and the OP No.2 is entitled to get 50%  of the constructed area.

            It is further stated by the Complainant that the Developers were trying to sell out the flats including the flat in question in respect of which Agreement for Sale was executed to meet up the need of money to complete the unfinished work and the Complainant even after paying booking amount has been being deprived of getting the flat in question. The Complainant by filing the instant Consumer Complaint prayed for direction upon the OP to execute and register the Deed of Conveyance in favour of the Complainant  and to deliver possession of the flat in question to the Complainant alternatively to refund Rs.2,40,000/- along with interest @ 10 p.a. from the date of execution of Agreement for Sale and to pay Rs.10,000/- as other expense, to pass a restraining order and to pay Rs.25,000/- towards cost of litigation.

            Notices were served but the OP did not turn up so the case proceeded ex-parte against the OP vide order No.6 dt.27.6.2018.

            The Complainant adduced affidavit in chief and annexed Development Agreement dt.7.3.2015 executed by and between the OP No.1 and OP Nos.3 & 4, Development Agreement dt.7.3.2015 executed by and between the OP No.2 and OP Nos.3 & 4, Agreement for Sale dt.14.4.2015, Advocate’s letter dt.7.1.2016.

Decision with reasons

            The Complainant claimed to have entered into an Agreement for Sale in respect of a flat and paid an amount of Rs.2,40,000/- towards booking amount. In support of such averment the Complainant filed Agreement for Sale dt.14.4.2015. On perusal of Agreement for Sale and memo of consideration, it appears that the Complainant entered into Agreement for Sale with OPs and paid Rs.2,40,000/-. On perusal of Agreement for Sale and Development Agreement, it appears that two Development Agreements were executed in respect of development of a plot of land by constructing a building at premises No.363, Purbachal Main Road, P.S.-Garfa, Kolkata-700 078. It further appears from Agreement for Sale that one Annapurna Dey (since deceased) purchased two plots of Bastu land measuring an area of 2 cottah 8 chittacks and 1 cottah respectively and mutated the same in her name and afterward sold out a portion of that land and after her demise her only daughter became the owner of that piece of land and after demise of said daughter Jamuna Pal her only son Kartick Pal (OP No.1 herein) became owner of said part of plot of land and another part was owned by Tapan Guchhait (OP No.2 herein) and the owners with an intention to develop said property entered into Development Agreement with OP Nos.3 & 4 for development of said plots of land by amalgamating said plots of land.

            On scrutiny of documents, no such document is found wherefrom it would have been evident that the owners of the said piece of lands were agreeable to amalgamate their plots. It further appears from the Development Agreements that the Developer are entitled to get 50% and 50% of constructed area respectively as per the proportionate ratio of owners land.

            The Complainant has sought relief in respect of a flat on the 2^nd floor back side of a building from the Developer allocation but it is not clear from the copies of Development Agreement whether the flat in question actually falls under the Developer’s allocation.

            It appears from documents on record that the Complainant paid Rs.2,40,000/- and by sending demand notice sought relief but the OP did not pay any heed to that request and such act on the part of the OP, in our view, amounts to deficiency in providing service.

            Under such state of affairs, we are of opinion that the Complainant is entitled to the relief.

            Since the land owners did not put their signature on the Agreement for Sale and no copy of Power of Attorney has been furnished to establish that the Developers are empowered to execute Agreement for Sale on behalf of the land owner as constituted Attorney of them, we are of opinion that if a direction is given to the OPs to refund the deposited amount to the Complainant justice would be served. The Complainant paid Rs.2,40,000/- on 14.4.2015 but did not get the flat in question and, therefore, he is entitled to get compensation in the form of interest.

            The OPs compelled the Complainant to file the instant case so they are liable to pay cost of litigation.

            In the result, the Consumer Complainant succeeds.

            Hence ordered

            That CC/57/2018 is allowed in part ex-parte against OP Nos.3 & 4 with cost and dismissed ex-parte against OP Nos.1 & 2 without cost.

            The OP Nos.3 & 4 are directed to refund Rs.2,40,000/- along with interest 8% p.a. from the date of deposition of the amount within two months from the date of communication of this order.

            The OP Nos.3 & 4 are further directed to pay Rs.7,500/- towards cost of litigation within aforesaid period.